27, Jun 2022 | Sagarika Ghose

The timing was eerie. On June 25, 1975, Indira Gandhi imposed the Emergency. On that very day, over four decades later, on June 25, 2022, civil rights activist Teesta Setalvad was dragged out of her Mumbai home by the Gujarat police which barged into her house and marched her out into a waiting police jeep. On the same day, former Gujarat police officer RB Sreekumar was arrested in Ahmedabad. As India recalled the 1975 June day when Indira Gandhi’s police hauled dozens of Opposition politicians and journalists to jail, in a stark reminder, on the same day, India again saw state power bearing down on an individual citizen.

The chronology of events is chilling. On Friday, June 24, the Supreme Court passed an order upholding the findings of an SIT (Special Investigation Team) that absolved Prime Minister Narendra Modi (then Gujarat Chief Minister) of any criminal conspiracy during the Gujarat communal riots of 2022 “Court gives clean chit to Modi,” ran the headlines. In the 453-page judgement, while the court said collusion and ‘criminal conspiracy’ of authorities could not be proven, it also made references to the law and order failures and incompetence of the Gujarat state administration.

The day after the Supreme Court judgement, a police inspector, quoting copiously from the Supreme Court order, filed an FIR against RB Sreekumar who was and is an outspoken critic of the Modi government during the Gujarat riots; Teesta Setalvad, who backed Zakia Jafri’s petition; and former Gujarat cop Sanjiv Bhatt, already in jail in another case.

Around the same time that day, Home Minister Amit Shah gave an interview to news agency ANI which was carried by all news channels. In the interview, Shah named Teesta Setalvad’s as one of the activist NGOs which “levelled allegations against BJP workers across Gujarat.” Hours after the interview aired, the Gujarat police – the Anti-Terror Squad, no less – swooped down on Setalvad’s residence. The Supreme Court judgement, registration of FIR, the Home Minister’s interview and the Gujarat police action on Setalvad unfolded like a strategic chain of events.

The judgement delivered rather superfluous and disturbing obiter dicta or opinionated comments, beyond the remit of an evidence-based ruling. The court referred to activists like Setalvad as people “sitting in a comfortable environment in their air conditioned offices.” On the petitioners, including Zakia Jafri, widow of Ehsan Jafri who has fought this case for 16 years, the judgement had harsh words: “The present proceedings have been pursued for 16 years…including with the audacity to question the integrity of every functionary…to keep the pot boiling obviously for ulterior design.” The court also said “All those involved in such abuse of process need to be in the dock and proceeded with in accordance with law.”

The phrase “audacity to question” government functionaries is intriguing when the same court, in its Right to Privacy judgement in August 2017, held “those who are governed are entitled to question those who govern about the discharge of their constitutional duties.” Last week’s judgement seems to suggest that questioning government functionaries by victims of horrific communal violence is not an act of citizenship but of ‘audacity’.

To stifle, through force, if necessary, any questioning of the state or government reveals an “Emergency mindset.” In fact, in Indira Gandhi’s time, at least there was the pretence of trying to clothe state power in law and procedure, today, it appears that cloak has been shaken off. In 1976, at least one stout-hearted judge, HR Khanna, gave a strongly dissenting order in the infamous ADM Jabalpur judgement which suspended civil rights. Today, social media online armies build such an overwhelmingly powerful media narrative and create such an overwrought witch-hunting atmosphere that anyone questioning or critiquing the authorities is seen as an enemy of the state, an “anti-national” or an “urban Naxal.”

In 2015, environmental activist Priya Pillai of Greenpeace was barred from travelling to London. Aakar Patel, head of Amnesty International in India, has also been banned from travelling overseas while Amnesty, a globally-recognised organisation is being investigated by the enforcement agencies. Tribal rights activist Sudha Bhardwaj was jailed for three years in a case that has several loopholes and only now is out on bail. The peace campaigner Harsh Mandar was placed under investigation, other rights campaigners like Gautam Navlakha remain behind bars ,while the octogenarian Father Stan Swamy died in jail while charged under specious UAPA provisions.

From those who have spoken out against the Citizenship Amendment Act to Kashmiri politicians to dissenting journalists, the list is long of those under the government scanner for taking up civil liberty issues.

What, after all, are Setalvad’s “crimes”? She has faced a slew of charges earlier, but in 2012, the Supreme Court itself called the charges against her in another case “spurious”. Today, she faces charges of fabricating evidence, embezzlement of funds and other accusations in different cases, none proven. But let’s not forget that in India, the process is often the punishment.

Now, a new Special Investigation Team is being formed. It is up to Setalvad to prove herself in court, yet it is also a fact that during the 2002 Gujarat riots over 60 people were killed in the violence at Gulberg Society in Ahmedabad. Former Congress MP Ehsan Jafri was burnt alive in front of his family even as he kept trying to telephone for help. It was at Gulberg Society that 14-year-old Azhar Mody, son of Parsi couple Dara and Rupa Mody went missing, and has never been found. Rahul Dholakia’s film ‘Parzania’ is based on the tragic disappearance of Azhar Mody. When government functionaries looked the other way, and even the Congress was hesitant to stand behind the widow of its own former MP, it was Setalvad who took up the cases of the Gulberg society victims, backing Zakia Jafri’s legal appeals for years. The apex court accuses Jafri and other petitioners of keeping the “pot boiling”, but is it a crime to seek closure for a tragedy? Are the bereaved not entitled to their emotions and to persist in the quest for justice when many of those responsible for the carnage still roam free? Not a single government functionary in Gujarat has so far visited to condole with the Gulberg victims. Setalvad stepped in where no one was willing to tread as human rights activists often do. By arresting her for “keeping the pot boiling”, the Gujarat government appears to be using Supreme Court observations to settle scores, sending out an ominous warning of what awaits human rights activists.

But it isn’t just Gujarat which views criticism and dissent as acts of criminality to be punished by state power. In Trinamool-ruled Bengal, YouTuber Roddur Roy was arrested for “derogatory remarks” against Chief Minister Mamata Banerjee. In MVA-ruled Maharashtra, sedition was slapped against a politician couple and actor Ketaki Chitale was arrested for a Facebook post reportedly targeting NCP patriarch Sharad Pawar.

Even more troublingly, relief from the judiciary has not been forthcoming, and there is little pushback from civil society. Journalist Siddique Kappan continues to languish in jail for over 18 months now, apprehended while on his way to cover the 2020 Hathras rape case. Activist Umar Khalid is also still in jail although the Delhi Police has still not been able to produce solid evidence on his role in the outbreak of violence. Using police power to slam activists and dissenters in jail does not ensure “law and order”, it actually destroys it. Politicians need to realise the value of rights activists like Teesta Setalvad. These activists appeal for justice and compassion from the system through lawful democratic means. As such they bring India’s democracy a significant amount of legitimacy and credibility, both at home and in the eyes of the world.

(The writer is senior journalist and author of a new biography on Atal Bihari Vajpayee) 

The original piece may be read here